Leslie C. Griffin is William S. Boyd Professor of Law at UNLV Boyd School of Law.
The Little Sisters of the Poor, who generously provide care to the elderly poor, have appeared as the most sympathetic of the thirty-six religious nonprofit petitioners in seven consolidated Supreme Court cases challenging the contraceptive mandate of the Affordable Care Act (ACA). The plaintiffs’ lawyers and some commentators have presented a sad portrait of the good Little Sisters hounded to violate their deepest moral convictions by the big bad federal government. Indeed, former Solicitor General Paul Clement made the pseudo-feminist argument in the Sisters’ cert. petition that the government had unfairly exempted male-run parishes from the mandate while forcing the nuns to comply.
These legal arguments have focused on the wrong women, completely ignoring the interests of Catholic female employees. The majority of Catholic women have used artificial contraception since the pill became available in the 1960s. Those Catholic women’s interests, not the Sisters’, should tip the scale toward the government in Zubik v. Burwell.
The Bishops’ opposition to the mandate
Our nation’s Roman Catholic bishops first publicly announced their opposition to any and all artificial contraceptive use – by Catholics and non-Catholics alike – in a 1919 pastoral letter. Nearly a century later, the same arguments resurfaced when the Department of Health and Human Services (HHS) first considered what types of health care should qualify as “preventive services” covered by the ACA. The bishops released comments arguing that contraception is not a “preventive service” (because pregnancy is not a disease) and is, moreover, harmful to women’s health.
After HHS adopted the Institute of Medicine’s recommendation that twenty contraceptives approved by the Food and Drug Administration (FDA) become part of preventive health care, the bishops successfully directed the national policy debate away from women’s health care and toward their own religious liberty.
As part of that religious liberty debate, the Obama administration completely exempted “churches, their integrated auxiliaries, and conventions or associations of churches” from the mandate. The government’s rationale for the exemption was that “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan” (emphasis added).
This reasoning demonstrates that the exemption was flawed ab initio. Catholic women do not share their hierarchy’s views on contraception. The exemption harmed Catholic women’s religious liberty to make their own decisions about contraceptive access and placed the government on the hierarchy’s side of the religious liberty debate, even though the hierarchy argued that contraception is unimportant to women’s health.
The bishops believed the exemption did not extend far enough, arguing that their massive network of religious non-profit schools, universities, hospitals, and social service agencies, as well as for-profit businesses and any individuals morally opposed to contraception, should be exempt. (The individuals would be exempt from participating in an insurance plan that provided contraception to their fellow employees.)
The bishops’ strategy to gain the exemption was multi-faceted. Calling attention to their representation of the nation’s “68 million Catholic Americans,” they submitted public comments against the administration’s proposals. They lobbied Congress for a legislative exemption. They began a vigorous public relations campaign against the Obama administration, asserting that the president had declared war on religious liberty by forcing religious employers to insure their employees. Finally, they gave their approval to forty-three lawsuits filed by Catholic non-profits around the country that desired to be completely exempt from the contraceptive mandate.
Although there has never been any evidence that the bishops can deliver the Catholic vote, the administration succumbed to the political pressure. After meeting with the then-president of the United States Conference of Catholic bishops (Archbishop Timothy Dolan of New York), President Barack Obama and HHS announced an accommodation to the bishops’ objection. Under the first version of the accommodation, religious non-profits had to inform their insurance carriers of their opposition to contraception. The insurers would then issue separate contraceptive insurance policies for the employees, thus breaking any link between the religious non-profits and the provision of contraception. Under litigation pressure, the government later changed the accommodation to require objecting employers to send a notification form with the insurer’s name and address directly to HHS. That HHS accommodation is the one being litigated in the Supreme Court.
The accommodation attempted to protect female employees by requiring the insurance companies to give women contraceptive access. Many Catholic women, including the Leadership Conference of Women Religious, expressed satisfaction with the government’s accommodation of both religious freedom and reproductive liberty. The government hoped the accommodation would put an end to the non-profits’ litigation.
Dolan, however, would settle for nothing but the complete exemption, and the forty-three Catholic plaintiffs continued their appeal of the accommodation. The archbishop characterized those court filings as a “compelling display of the unity of the church in defense of religious liberty,” even though only twelve of the nation’s 194 dioceses had sued, and only a “handful” of two hundred Catholic colleges and universities participated in the litigation. The “united front” presented by the joint filings of forty-three lawsuits was intentional; the bishops wanted a show of force to counter the voices of those Catholics, especially Catholic religious women, who were satisfied with the accommodation.
The administration’s concessionary accommodation was foolhardy. The existence of the non-profits’ accommodation allowed for-profit businesses to win a similar accommodation in Burwell v. Hobby Lobby. Moreover, the religious non-profits never met the president halfway. They argue in the Court that notifying HHS substantially burdens their religious freedom in violation of RFRA.
The RFRA challenge to the accommodation
For RFRA to be triggered, plaintiffs must establish that they are persons whose exercise of religion is substantially burdened by the government. Once a substantial burden is established, the government must demonstrate that it has a compelling government interest and used the least restrictive means to enforce that interest.
Catholic employers who oppose contraceptive insurance have always notified their insurance carriers not to include such coverage in their policies. Once the accommodation required them to do so, however, the employers argued that notifying the companies – or HHS – made them morally complicit with contraception in a manner that substantially burdened their religion.
Most of the courts of appeals saw this reasoning for what it was, namely a creative effort to block women from contraceptive access. Unfortunately for the government and Catholic women, however, Roman Catholic Justice Samuel Alito included some Catholic moral theology in his substantial burden analysis in Burwell v. Hobby Lobby Stores. Citing Jesuit Father Henry Davis’s Moral and Pastoral Theology (1935), Alito wrote that Hobby Lobby “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” It is not for the Court, he concluded, to determine whether such a burden is substantial or insubstantial under RFRA; that is the moral judgment of the plaintiffs. The Court must simply defer to it, even when that moral belief may conflict with the beliefs of individual employees.
The plaintiffs’ complicity argument is extreme within the history of moral theology. The bishops, for example, have never ruled that conscientious objectors to war may not apply for C.O. status. The Court should not defer to an argument when its main purpose is to block the rights of Catholic women, who have made their own decisions of conscience that contraceptive use is moral within their faith.
Compelling government interest and least restrictive means
Even if the plaintiffs’ religion is substantially burdened under Hobby Lobby, the mandate may survive if the government demonstrates that it has a compelling government interest and used the least restrictive means to enforce that interest. Throughout the litigation, the government has repeatedly asserted its compelling interest in women’s health.
Focusing attention on the situation of Catholic women identifies another interest, namely their religious liberty to practice contraception and not to have the government take the hierarchy’s side in an internal religious dispute. The non-profits challenged the accommodation because they want the exemption, which was falsely premised on the idea that religions agree internally about morality. The accommodation strives to protect the liberty of the numerous Catholic and non-Catholic female employees who work for these institutions. If the government has an interest in accommodating the plaintiffs, it has an even more compelling interest in protecting women’s right not to be shut out of the insurance marketplace because of their employers’ religious beliefs.
It is also hard to imagine a means less restrictive than asking the plaintiffs to do what they have always done, namely publicly assert their objection to contraception. That’s all that the HHS regulation demands and all the Little Sisters have to do to protect their 4,024 employees from losing their religious liberty.